United States v. Ubiera, Docket No. 05-5256-cr (2d Cir. May 15, 2007) (Jacobs, Cardamone, Sotomayor, C.JJ.). Guidelines section 4A1.2(c)(1) excludes convictions for certain petty offenses and those “similar” to them from a defendant’s criminal history score. Here, in a case of first impression, the Court rejected the defendant’s argument that his two New Jersey prior convictions for shoplifting were “similar” to the listed offense of passing bad checks and should not have generated criminal history points.
The Circuit has long used a multi-factor test in determining similarity under 4A1.2(c). The factors include the relative punishments, the elements of the offenses, the level of culpability, the degree to which the commission of the offense predicts recidivism, and any other factor that is “reasonably” relevant to the question.
Ubiera was convicted of stealing $248 worth of merchandise from a Paramus department store in 1999, for which he was fined $553. His second conviction involved the attempted theft of $903 worth of merchandise; he was fined $550. The Court had little trouble finding that these offenses were not “similar” to passing bad checks. First, Under New Jersey law, while the penalties for shoplifting and passing a bad check are comparable, only shoplifting carries a minimum sentence of community service. Second, shoplifting is a more serious type of offense because it is harder for the victim to detect. And, because it is “trespassory,” it poses risks of a confrontation that are less likely to occur when a bad check is passed. In addition, “because shoplifting diminishes trust in the retail marketplace, it has insidious collateral impacts on the public as a whole.” Finally, since shoplifting is harder to detect, a person with two such convictions has probably committed more just two shoplifting offenses, while this would not be true for passing bad checks.
This case is very fact-specific, but is a good example of the methodology that the Court uses in such situations. It should be noted that the Court has, more often than not, been receptive to such “similarity” arguments.
Department of Odd Coincidences: Here is the true oddity of this case. One of the attorneys for the appellant is Steven A. Feldman, while the AUSA is Steven D. Feldman. Even the Second Circuit would have to conclude that these names are “similar.”